Este
reporte fue elaborado por Oswaldo Ruiz-Chiriboga.
En el
último volumen de la Revista American University Journal of Gender, Social Policy and the Law (Vol. 21, No. 2, 2012-2013, pp. 437-453), se publicó un artículo de
Patricia Tarre Moser titulado “The Duty to Ensure Human Rights and Its Evolution in the Inter-American
System: Comparing Maria Da Penha V Brazil with Jessica Lenahan (Gonzales) V. United States”. Este es un extracto
de la introducción del artículo:
“The possibility of holding a State responsible for acts of domestic violence
has been recognized in the Inter-American system since the first decision of
the Inter-American Court of Human Rights, Velásquez-Rodríguez v. Honduras.
Velásquez-Rodríguez, as with most cases in the Inter-American system,
concerned actions perpetrated by State
agents. Nonetheless, since Velásquez-Rodríguez, the court has
consistently held that States may be held responsible for acts perpetrated by private individuals when the State
does not comply with its duty to ensure human rights. […] A Domestic violence,
as an act that potentially violates the right to personal integrity and the
right to life, under certain circumstances, falls within this category.
Consequently, the State has international obligations associated with the
occurrence of domestic violence within its borders; the duty to prevent,
investigate, punish, and, when possible, repair the harm. All of these duties may be referred to
as the general duty to ensure human rights.
[…] Even though the possibility
of holding a State responsible for acts initially perpetrated by private individuals was alluded to
in the first case ever decided by the
court in Velázquez-Rodríguez, a concrete case within the Inter-American
jurisprudence has not applied the implications of the Velazquez-Rodriguez decision
until recently. The best examples of this evolution are two cases of domestic
violence: Maria da Penha Maia Fernandes v. Brazil and Jessica Lenahan
(Gonzales) v. United States.
[…] The objective of this Article
is to analyze the different reasoning used in Maria da Penha and Lenahan, and
explain the significance of this variance in an analysis for future cases of
domestic violence within the Inter-American System. First, this Article
explains the facts and the Commission's legal analysis in Maria da Penha and Lenahan and briefly
describes the different approach taken by
the Commission in each case. Second, this Article analyzes the evolution
in the case law that led to the recognition that a State's failure to prevent
and investigate could constitute a violation of substantive rights. Third, this
Article examines the standard the Commission utilized in analyzing the duty to
prevent in Lenahan and describes
the theory of foreseeable risk, how it has been used, and the role it played in
the Lenahan case. Finally, this Article discusses the theory of foreseeable
risk, its application to cases of domestic violence, and the significance of
this development in the jurisprudence of the Inter-American system.”
